mr. chairman , i yield myself the balance of my time . 
we have heard a lot of talk here today , and i submit that this is not the answer , to emasculate all the laws . 
i would bet that if the gentleman from california ( mr. hunter ) xz4001910 , the gentleman from california ( mr. cunningham ) xz4000910 , myself and any other interested party sat down , one meeting with all the interested parties , we could resolve this . 
but that is not the way they want to proceed . 
this was not a recommendation of the 9/11 commission . 
this is essentially emasculating all laws to get an environmental project completed . 
and emasculating all laws is not the way to do it . 
this amendment is a good amendment because it does not allow my colleagues to emasculate all laws . 
what it allows us to do is to let this process work . 
and with the pressure that has been brought here today , we can get that fence built . 
the opposition on this side is not against the fence , it is against emasculating all the laws of the land in order to get there . 
so i ask for an `` aye '' vote . 
mr. chairman , i submit for the record a memorandum of the congressional research service , dated february 7 , 2005 , regarding the real id act . 
congressional research service , february 7 , 2005 . 
memorandum & lt ; br & gt ; to : house committee on homeland security , attention : sue ramanathan ; and house committee on the judiciary , attention : kristin wells . 
pursuant to your request on february 3 , this memorandum analyzes section 102 of h.r. 418 , the real id act . 
section 102 , captioned `` waiver of laws necessary for improvement of barriers at borders , '' provides the secretary of homeland security with authority to waive all laws he deems necessary for the expeditious construction of the barriers authorized to be constructed by 102 of the illegal immigration reform and immigration responsibility act of 1996 ( iirira ) ( p.l . 
104-208 , div . 
c , codified at 8 u.s.c . 
1103 note ) and removes judicial review from such waiver decisions . 
specifically , this memorandum discusses the extent to which congress has passed laws that provide waivers comparable to 102 of h.r. 418 and outlines some of the legal issues that could potentially arise if 102 h.r. 418 , 102 section 102 of h.r. 418 would amend 102 ( c ) of iirira to read as follows : ( c ) waiver. -- ( 1 ) in general. -- notwithstanding any other provision of law , the secretary of homeland security shall have the authority to waive , and shall waive , all laws such secretary , in such secretary 's sole discretion , determines necessary to ensure expeditious construction of the barriers and roads under this section . 
( 2 ) no judicial review. -- notwithstanding any other provision of law ( statutory or nonstatutory ) , no court shall have jurisdiction -- ( a ) to hear any cause or claim arising from any action undertaken , or any decision made , by the secretary of homeland security pursuant to paragraph ( 1 ) ; or ( b ) to order compensatory , declaratory , injunctive , equitable , or any other relief for damage alleged to arise from any such action or decision . 
waiver provisions if enacted , the new 102 would provide the secretary of homeland security with not only the authority to waive all laws he determines necessary to ensure the expeditious construction of the barriers and roads under 102 of iirira , but the requirement that the secretary do so . 
this provision could provide the secretary with broader waiver authority than what is currently in 102 ( c ) of iirira . 
this authority would apparently include laws other than the endangered species act and the national environmental policy act , but may not include a waiver of protections established in the constitution . 
all laws waived , however , must be determined by the secretary to be necessary to ensure expeditious construction of the barriers and roads . 
the waiver authority congress commonly waives preexisting laws , though the process necessary to complete the waiver and the number of laws waived vary considerably from provision to provision . 
even more common is the use of the phrase , `` notwithstanding any other provision of law. '' while the use of a broad `` notwithstanding any other provision of law '' infrequently governs interpretation , such directives seem facially preclusive , and some courts have determined that `` notwithstanding '' language may serve to explicitly preempt the application of other laws . 
other courts , however , have held that such provisions are generally not dispositive in determining the preemptive effect of a statute . 
after a review of federal law , primarily through electronic database searches and consultations with various crs experts , we were unable to locate a waiver provision identical to that of 102 of h.r. 418 -- i.e. , a provision that contains `` notwithstanding language , '' provides a secretary of an executive agency the authority to waive all laws such secretary determines necessary , and directs the secretary to waive such laws . 
much more common , it appears , are waiver provisions that ( 1 ) exempt an action from other requirements contained in the act that authorizes the action , ( 2 ) specifically delineate the laws to be waived , or ( 3 ) waive a grouping of similar laws . 
the most analogous provisions that we located appear to be , at least on their face , the following : 43 u.s.c . 
1652 ( c ) : allows the secretary of the interior and other federal officers and agencies the authority to waive any procedural requirements of law or regulation which they deem desirable for authorizations that are necessary for or related to the construction , operation , and maintenance of the trans-alaska oil pipeline system ( e.g. , rights-of-way , permits , and leases ) . 
25 u.s.c . 
3406 : allows the secretaries of the interior , labor , health and human services , and education , notwithstanding any other law , to waive any statutory requirement , regulation , policy , or procedure promulgated by their agency that is identified by a tribal government as necessary to implement a submitted tribal plan under the indian employment , training and related services demonstration act of 1992 , as amended . 
20 u.s.c . 
7426 : provides almost identical waiver language to that of 25 u.s.c . 
3406 , but for plans submitted by tribal governments for the integration of education and related services provided to indian students . 
there are many other provisions that arguably grant broad waiver authority similar to that of 102 , but contain qualifications or reporting requirements that seem to limit their breadth . 
for example , 43 u.s.c . 
2008 allows the president to waive provisions of federal law he deems necessary in the national interest to facilitate the construction or operation of crude oil transportation systems , but such waivers must be submitted to congress , and congress must pass a joint resolution before the president can act on the waivers . 
as mentioned above and as the examples we have set forth arguably demonstrate , the breadth of waiver authority granted by 102 of h.r. 418 does not appear to be common in the federal law searched . 
judicial review provisions by including the language `` no court , '' 102 ( c ) ( 2 ) of h.r. 418 appears to preclude judicial review of a secretary 's decision to waive provisions of law by both federal and state courts . 
the preclusion of judicial review in state court and of state claims appears buttressed by the fact that 102 ( c ) is explicitly intended to preclude judicial review of nonstatutory laws -- a term which would seem to imply the inclusion of state constitutional and common law claims . 
it is generally accepted that article iii of the united states constitution grants congress the authority to regulate the jurisdiction , procedures , and remedies available in federal courts . 
however , what remains uncertain is whether congress 's authority , pursuant to article iii , extends to with respect to congress 's ability to control the jurisdiction of state courts , the supreme court has ruled that subject to a congressional provision to the contrary , state courts have concurrent jurisdiction over all the classes of cases and controversies enumerated in article iii , except for suits between states , suits in which either the united states or a foreign state is a party , and those considered within the traditional jurisdiction of admiralty law . 
thus , it appears possible to argue that congress has a plenary power to allocate jurisdiction between the state and federal courts . 
in other words , if , for example , congress can make jurisdiction over an area of law exclusively federal , thereby depriving state courts of any ability to hear the claim , it appears that congress may also be able to remove a cause of action from state courts without concurrently granting jurisdiction to the federal courts . 
state courts , however , are often considered to be independent and autonomous from the federal court system . 
this independent status has led some scholars to argue that because the constitution appears to reserve to the states the authority to control the jurisdiction of their own courts , congress 's `` only means of allocating jurisdiction is through control of the federal court 's jurisdiction. '' the argument that state courts are autonomous can be derived , in part , from the supreme court 's doctrine with respect to its ability to review decisions from turning to congress 's ability to remove jurisdiction with respect to claims arising under the constitution , it appears that supreme court precedent requires that at least some forum be provided for the redress of constitutional rights . 
while it appears that the supreme court has not directly addressed whether there needs to be a judicial forum to vindicate all constitutional rights , it appears that the court has taken to noting constitutional reservations about legislative denials for jurisdiction for judicial review of constitutional issues , as well as construction of statutes that purport to limit the court 's jurisdiction . 
at least one justice , however , has indicated that there have been particular cases , such as political question cases , where all constitutional review is in effect precluded . 
nevertheless , the court has generally found a requirement that effective judicial remedies be present . 
for example , in cases involving particular rights , such as the availability of effective remedies for fifth amendment takings , the court has held that `` the compensation remedy is required by the constitution. '' in addition , lower federal courts appear to have held that , in most cases , some forum must be provided for the vindication of constitutional rights . 
cases such as these would seem to provide a basis for the court to find that parties seeking to vindicate other particular rights must have a judicial forum for such challenges ; therefore , the court may construe the provisions of h.r. 418 in a manner that preserves this right . 
